The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences

72 Pages Posted: 10 Aug 2008 Last revised: 13 Apr 2012

See all articles by Ambassador Nathan A. Sales

Ambassador Nathan A. Sales


Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: October 12, 2009


Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Keywords: 'Chevron USA, Inc. v. Natural Resources Defense Council', 467 U.S. 837, 843 (1984), 'Chevron' Doctrine, 'Chevron' deference, Agency jurisdiction, Administrative Law, Administrative Jurisdiction, Public Choice

JEL Classification: K23, K40

Suggested Citation

Sales, Ambassador Nathan A. and Adler, Jonathan H., The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences (October 12, 2009). University of Illinois Law Review, Vol. 2009, No. 5, pp. 1497-1565, George Mason Law & Economics Research Paper No. 08-46, Case Legal Studies Research Paper No. 8-20, Available at SSRN:

Jonathan H. Adler

Case Western Reserve University School of Law ( email )

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